The Times settles Nightjack claim for £42,500 plus costs

Why there should now be a "Nightjack" test for proposals for press regulation.

The New Statesman can reveal that the Times has settled the civil claim brought by "Nightjack" blogger Richard Horton for £42,500 plus legal costs. 

Horton brought his civil claim for breach of confidentiality, misuse of private information and deceit after it emerged that his identity had not been uncovered by some brilliant piece of detective work by a staff journalist, as was maintained by the newspaper at the time, but had been established instead by unauthorised access to the blogger's email account.

There will now be a statement in open court by the Times before the end of this month.

As there is now a criminal investigation related to this matter - a journalist has been been arrested and a former in-house lawyer has been interviewed under caution - not a great deal more can be said about the circumstances of the unauthorised access.  It is a matter entirely  for the criminal courts to determine whether there is any criminal liability arising - a settlement of a civil claim does not and should not prejudice any criminal investigation.  Certainly nothing in this post should be taken to suggest any criminal liability of any person or entity connected with the case.

And given the criminal investigation, there is little which those involved can currently say about this particular case.  Horton's lawyer Mark Lewis tells me only that whilst he is delighted that his client has won substantial compensation, nothing can put Horton back in the position that his identity was secret. 

And Horton says, "I am happy to have settled with the Times and I can now put that incident behind me and get on with my life".

 

A "Nightjack test" for press regulation?

However, there is perhaps a wider issue about the case apart from the now settled civil claim and the current criminal investigation. 

The Nightjack case raises a general point relevant to the debate on press regulation which will follow publication of the recommnedations of the Leveson Inquiry.

Quite simply, without the Leveson Inquiry's effective use of statutory powers, the Nightjack incident would never have come to light.  It is thereby a perfect example of what remains hidden with "self-regulation", still the the preferred model of many in the newspaper industry.

Here it is important to note that the story only emerged when the New Statesman analysed witness statements submitted by various figures from News International in response to formal (and legally backed) requests for evidence (the full account is set out here). 

Even then, News International was initially reluctant to give a full account, and it was only when both the editor and the former legal manager of the Times were summoned to give oral evidence to the Leveson Inquiry on the incident that the fuller picture emerged of what had actually happened.

As Prof Brian Cathcart, director of Hacked Off, told me earlier today:

The Nightjack affair is a clear case of a newspaper behaving unjustly and  it would never have come to light but for the scrutiny of the Leveson Inquiry, a body with real legal clout.

No voluntary, self-regulatory regime would ever have unearthed the facts.

This is further proof that we need an effective press regulator that has teeth and is genuinely independent the press industry as well as of government.

Tom Watson MP agrees:

I hope the Prime Minister and other members of the cabinet now realise that without the statutory powers of the Leveson Inquiry none of this whole sorry saga involving Times Newspapers and News International would ever have seen the light of day.

One test - which perhaps should be called the "Nightjack test" - of any non-statutory proposals for press regulation will be how an envisaged regulator can obtain relevant documentary and witness evidence from an unwilling news title. 

Would some non-statutory regulator really be able to obtain information from a title akin to that which the Leveson Inquiry was able to prise from News International in respect of the Nightjack incident?

For many it is difficult to see how any contractual or voluntary basis for press regulation could pass this important "Nightjack test" - it would merely (again) be regulation at the fiat of the regulated.

And unless any post-Leveson press regime can pass such a "Nightjack test" then the old pre-Leveson abuses could well continue.

 

David Allen Green is legal correspondent of the New Statesman

 

POSTSCRIPT

Richard Horton has now made the following comment below the line:

None of the above would have happened without the patient, detailed forensic dissection of the facts by David Allen Green at the New Statesman. It feels like a huge weight has been lifted from my life and after 3 years of not writing anything worth a damn, I am back writing for pleasure again. Leveson was undoubtedly the lever but without David's work at the fulcrum, I would still be sat here 3 years later strongly suspecting wrongdoing but entirely without evidence.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Theresa May missed an easy opportunity on EU citizens' rights

If the UK had made a big, open and generous offer, the diplomatic picture would be very different.

It's been seven hours and 365 days...and nothing compares to EU, at least as far as negotiations go.

First David Davis abandoned "the row of the summer" by agreeing to the EU's preferred negotiating timetable. Has Theresa May done the same in guaranteeing the rights of EU citizens living here indefinitely?

Well, sort of. Although the PM has said that there have to be reciprocal arrangements for British citizens abroad, the difficulty is that because we don't have ID cards and most of our public services are paid for not out of an insurance system but out of general taxation, the issues around guaranteeing access to health, education, social security and residence are easier.

Our ability to enforce a "cut-off date" for new migrants from the European Union is also illusory, unless the government thinks it has the support in parliament and the logistical ability to roll out an ID card system by March 2019. (It doesn't.)

If you want to understand how badly the PM has managed Britain's Brexit negotiations, then the rights of the three million EU nationals living in Britain is the best place to start. The overwhelming support in the country at large for guaranteeing the rights of EU citizens, coupled with the deep unease among Conservative MPs about not doing so, meant that it was never a plausible bargaining chip. (That's before you remember that the bulk of the British diaspora in Europe lives in countries with small numbers of EU citizens living in the UK. You can't secure a good deal from Spain by upsetting the Polish government.) It just made three million people, their friends and their families nervous for a year and irritated our European partners, that's all.

If the United Kingdom had made a big, open and generous offer on citizens' rights a year ago, as Vote Leave recommended in the referendum, the diplomatic picture would be very different. (It would be better still if, again, as Vote Leave argued, we hadn't triggered Article 50, an exit mechanism designed to punish an emergent dictatorship that puts all the leverage on the EU27's side.)

As it happens, May's unforced errors in negotiations, the worsening economic picture and the tricky balancing act in the House of Commons means that Remainers can hope both for a softer exit and that they might yet convince voters that nothing compares to EU after all. (That a YouGov poll shows the number of people willing to accept EU rules in order to keep the economy going stretching to 58 per cent will only further embolden the soft Brexiteers.)

For Brexiteers, that means that if Brexit doesn't go well, they have a readymade scapegoat in the government. It means Remainers can credibly hope for a soft Brexit – or no Brexit at all. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.

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